Haley Brown v. RK Hall Construction, LTD., RKH Capital, LLC, and Stacy Lyon D/B/A Lyon Barricade & Construction
06-15-00072-CV
| Tex. Crim. App. | Sep 25, 2015Background
- Plaintiff Haley Brown was injured in a 2012 highway construction accident and sued TXDOT, R.K. Hall Construction, and Lyon Barricade. Defendants moved for summary judgment on multiple grounds; the trial court signed an order granting those motions on August 27, 2015 and (as drafted by defendants) included permission to file a permissive interlocutory appeal.
- The signed order did not identify the controlling question(s) of law or explain how an immediate appeal would materially advance termination of the litigation (requirements of Tex. R. Civ. P. 168).
- Brown’s counsel did not receive the clerk’s copy of the signed order from the trial court; counsel first received a faxed copy from opposing counsel on September 9, 2015 (13 days after signing).
- Defendants filed a joint motion to sever on September 14, 2015, asserting Brown had not timely filed a petition for interlocutory appeal and asking severance so their summary-judgment rulings would become final.
- Brown filed a motion in the trial court (1) asking the court to modify the August 27 order to comply with Tex. R. Civ. P. 168 (identifying controlling legal question(s) and explaining material advancement), and alternatively (2) to extend her time to file a petition for interlocutory appeal under Tex. R. App. P. 26.3 and Tex. R. Civ. P. 306a(5), citing failure of timely notice and constitutional due-process concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the August 27 order complies with Tex. R. Civ. P. 168 | Brown: the order is deficient because it fails to identify the controlling question(s) of law or explain why immediate appeal would materially advance termination; request to modify order to include required language | Defendants: drafted the proposed order; argue interlocutory appeal deadline expired and plaintiff failed to timely file petition | No appellate ruling in the record provided; plaintiff moved to modify the order (pending in trial court as of filing) |
| Whether Brown timely filed a petition for interlocutory appeal or is entitled to an extension under Tex. R. App. P. 26.3 | Brown: she filed a motion to extend within 15 days of the due date (per Rule 26.3) and within 15 days of when the petition purportedly was due because she lacked timely notice | Defendants: assert petition deadline ran from date order was signed (15 days) and Brown did not timely perfect appeal | Motion to extend time filed in trial court (relief requested; no ruling shown in record) |
| Whether Rule 306a(5) and lack of clerk notice excuse late perfection | Brown: because the clerk never timely transmitted the order and she first learned by fax 13 days after signing, Rule 306a(5) (and equitable considerations) support extending the filing deadline | Defendants: argue deadlines are measured from signing and severance should render summary-judgment rulings final | Motion seeks relief under 306a(5); disposition not included in provided text |
| Whether denying extension would violate Brown’s due-process rights | Brown: depriving her of appellate rights due to untimely notice would violate constitutional due process (cases require reasonable notice and opportunity to be heard) | Defendants: implicit position that procedural deadlines control and should not be excused | Plaintiff argues constitutional claim as alternative ground for relief; no court decision shown in the materials provided |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (appellate jurisdiction is invoked when an appellant timely files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction; courts should allow correction of defects in the perfecting instrument)
- Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) (Rule 26.3 and Verburgt apply to interlocutory appeals authorized by statute)
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2008) (permissive interlocutory appeals under section 51.014 are discretionary and do not forfeit ordinary appeal rights after final judgment)
- Stolte v. County of Guadalupe, 139 S.W.3d 406 (Tex. App.—San Antonio 2004) (discusses interlocutory-appeal procedure and the absence of detailed implementing rules for permissive interlocutory appeals)
- Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539 (Tex. App.—Houston [14th Dist.] 2015) (defining a “controlling question of law” and factors supporting substantial grounds for difference of opinion)
- Schroeder v. City of New York, 371 U.S. 208 (1962) (due process requires reasonable notice and opportunity to be heard)
- Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (due-process notice principles in civil adjudications)